' Briefly stated the facts of the case are that the Government had hired a House No, 119, situated at Mirpur Town in Sector F/1, belonging to one Lt.-Col. Nazir Hussain at the monthly rent of Rs,950 for the Office of the District Horticulture Officer, Mirpur and the same was being used as office-cum- residence by the said Officer since the year, 1974.
2. The petitioner on being transferred from Muzaffarabad to Mirpur in the capacity of District Horticulture Officer in October, 1978 also occupied the same house for his office and residence. The Azad Jammu and Kashmir Government purchased the building known as Kalyal Building in Mirpur Town from the Department of Co-operative Societies and vide its Circular, dated 17-5-1982 (Annexure P/11 with the written statement) directed all the departments to shift their all those offices at Mirpur housed in private rented buildings to the aforesaid Kalyal Building before the first of July, 1981 which target date was later on extended upto First of November, 1981 in the light of which the Superintending Engineer P.W.D. Mirpur allotted accommodation in the said building to such offices including the Office of the District Horticulture Officer to whom two rooms were allotted. The petitioner did not shift his office but instead made a representation to the Government as well as to the then President of Azad Jammu and Kashmir for exempting his office from shifting to the Kalyal Building mainly on the ground that in terms of Form P.C.-I sanctioned for the project of Horticulture, the District Horticulture Officer was to be provided with the Government accommodation for his residence and as alleged by him, the President of Azad Jammu and Kashmir Government verbally promised to consider his request for exemption from the Government Circular referred to above sympathetically but vide Government Order, dated 17-5- 1982 (Annexure P17), the petitioner was directed to immediately shift his office to the said Kalyal Building. On receipt of the above order, the petitioner started efforts to get accommodation for his office in the said building and was only successful in his efforts on 30-6-1982 when he shifted his office to the said building on being provided with the accommodation by the Public Works Department. The Government-respondent then issued the impugned order on 17-7-1983 whereby the petitioner was held liable for the payment of rent of the house previously occupied by him as his office-cum-residence for a period of eight months with effect from 1-11-1981 to 30-6-1982 amounting to Rs, 7,680 and Rs,600 per month were ordered to be deducted from his salary towards the recovery of the said amount.
3. Feeling aggrieved by the above order, the petitioner has challenged the legality of the same in this writ petition.
4. We have heard the learned counsel for the parties and have also gone through the record of the case. It has been contended by the learned counsel for the petitioner that the impugned order has been made by the Government-respondent without resorting to the disciplinary action under the Efficiency and Discipline Rules, 1977 (hereinafter referred to as the Rule) for which reason it is unlawful needing quashment. It is further argued that the impugned order has also been passed without giving any opportunity of being heard to the petitioner and as such it is unlawful having been passed in violation of the principle of natural justice 'audi alterm partem'.
5. On the other hand, it has been contended by the learned counsel for the respondents that the impugned order has not been passed under the Rules in any disciplinary proceedings against the petitioner and as such the question of following the procedure under the said Rules did not arise. It was further argued that the impugned order relates to the terms and conditions of the service of the petitioner for which reason appeal against it lays exclusively before the Service Tribunal and is not amenable to the writ jurisdiction of the High Court.
6. It is also argued by the learned counsel for the respondents that the petitioner had the right to make representation against the impugned order to the Government but instead of doing so he preferred an appeal before it which was rightly dismissed as incompetent and therefore, the present writ is not competent.
7. I have given my due consideration to the arguments addressed at the bar and have also gone through the relevant law applicable to the case. The first question that requires determination is as to whether or not the Government had any power to pass the impugned order except under the.
Efficiency and Discipline Rules. The above question arises from the conflicting contentions of the counsel for the parties. The learned counsel for the petitioner has taken exception to the impugned order on the ground that the same has been made without taking recourse to the initiation of disciplinary proceedings against the petitioner under the Efficiency and Discipline Rules which governs such proceedings whereas to counter the above contention, the learned counsel for the respondents have contended that the Government-respondent had passed the impugned order independent of the Efficiency and Discipline Rules and as such there was no necessity of complying with the formalities necessary for taking disciplinary action against the civil servant under the said Rules.
8. After examining the above contentions of the learned counsel for the parties in the light of the relevant law applicable to the facts of the present case, I am of the considered view that the Government did not enjoy any power to make the impugned order except by way of taking disciplinary action against the petitioner in accordance with the Efficiency and Discipline Rules.
9. Section 49 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 provides that the terms and conditions of the services of the civil servant are to be regulated by the law and in pursuance of the above provision of the Constitution the legislature has enacted the law known as Azad Jammu and Kashmir Civil Servants Act, 1976 which regulates the appointments to and the terms and conditions of the persons in the service of Azad Jammu and Kashmir employed in connection with the affairs of the Government and provides for the matters connected therewith or ancillary thereto. The pay of the civil servant has been made a term and condition of the service under section 16 of the aforesaid Act which provides that a civil servant appointed to a post or grade shall be entitled to, in accordance with the Rules, to the pay sanctioned for such post or grade.
10. In view of the above provisions of law, the petitioner was entitled to the pay and grade of the post of District Horticulture Officer, but by virtue of the impugned order Rs,600 per month are to be deducted from his pay towards the recovery of the amount of Rs,7,680, the liability for the payment of which amount has been imposed upon him.
' The petitioner was made liable to pay the above amount on the ground that he continued to occupy the house hired by the Government for the Office of the District Horticulture Officer Mirpur in breach of the order of the Government requiring him to vacate the same and shift it to the newly- allotted accommodation for the said office in the Kalyal Building Mirpur. Such an order is a penal one which amounts to imposition of penalty on the petitioner. The Act also provides for taking disciplinary action against the civil servant shall be liable to discipline as prescribed. Under section 2 of the Act, the prescribed means prescribed by the Rules which under section 23 of the same can be framed by the Government to carry out the purpose of the Act. The Government, has, in exercise of the powers vested in it under section 23 of the Act, framed Rules known as Efficiency and Discipline Rules, 1977 governing the disciplinary proceedings against the civil servants in which the procedure to be followed and the penalties to be imposed are also prescribed. Under sub clause
(4) of clause (1) of sub-rule (1) of rule 4 of the said Rules, the recovery of the whole or any part of the pecuniary loss caused to the Government by the negligencies or breach of order by the civil servant has been described as one of the minor penalties and since under the impugned order the pecuniary loss caused to the Government by the petitioner by not complying with the Government Order requiring him to shift his office to Kalyal Building is sought to be recovered from him, the impugned order amounts to imposing upon him the minor penalty which could only be passed under sub-rule(8) of rule 7 read with rule 4 of the Efficiency and Discipline Rules.
11. The learned counsel for the respondents did not refer to any other law under which the Government is vested with the powers to make an order for the recovery of any pecuniary loss caused to the Government by breach of its order by the civil servant and there can be no such power with the Government in view of the provisions of section 3 of the Act which lays down in unambiguous terms that the terms and conditions of the services of the civil servant shall be as provided in the Act and the Rules made thereunder. Thus no order which adversely effects any of the terms and conditions of the service guaranteed under the Act to the civil servant can be passed by the Government or any other authority against him except under the -.Act itself or the Rules made thereunder.
12. In view of the above legal position, the Government was incompetent to make the order impugned in this writ petition save in exercise of its powers conferred upon it under the Efficiency and Discipline Rules, as the same amounted to imposition of minor penalty in terms of sub-clause
(4) of clause (a) of sub-rule (1) of rule 4. The petitioner is entitled to receive the pay of the post to which he is substantially appointed and realization of any amount of pecuniary loss caused by him to the Government due to his breach of an order, by deducting Rs,600 per month from his salary cannot be described anything except the imposition of minor penalty on him under the Efficiency and Discipline Rules.
13. Since the impugned order, as seen above, could only be made under the Efficiency and Discipline Rules, it was incumbent upon the respondent-Government to have complied with all those legal formalities which have been made obligatory to be fulfilled under the said rules before passing the impugned order but it is undisputed that a procedure prescribed for taking disciplinary proceedings in the said rules was not adhered to and totally ignored while passing the impugned order. The authority in the case of the petitioner had not given any direction to the authorized officer for initiating disciplinary proceedings against the petitioner as it was required to do so under rule 5 of the Efficiency and Discipline Rules, if it was of the opinion that there were sufficient grounds for taking such proceedings against him. Similarly, the authorized officer failed to comply with the mandatory provisions of rule 6 of the Efficiency and Discipline Rules by not either appointing an Enquiry Officer or Enquiry Committee to enquire into the allegations against the petitioner or informing him in writing about the action proposed to be taken in regard to him alongwith the grounds of such action and giving him reasonable opportunity of showing cause against the same.
14. The Government lacked any such power to take the petitioner by surprise by passing an order prejudicial to the terms and conditions of his service with regard to his pay guaranteed to him under the Act which exclusively governs the terms and conditions of the service of the civil servant without giving him even show-cause notice which was the maximum requirement under rule 6 of the Efficiency and Discipline Rules.
15. In view of the above legal position, the argument of the learned counsel for the respondents that the impugned order is lawful as the same has not been made under the Efficiency and Discipline Rules, is devoid of any force because in case of its acceptance, it would amount to laying down that the Government is empowered to make any order detrimental to the terms and conditions of the service of a civil servant protected and guaranteed under the law even without initiating disciplinary proceeding against him under the relevant rules. The Government does not possess unlimited and unabridged powers and is not so omnipotent as to make any order it likes acting on its whims and caprices with regard to its employee but on the contrary its competency in this respect extends to making only those orders which it has been given power to make under the law.
It is not authorized to pass an order which adversely effects any of the terms and conditions of the service of a civil servant save in accordance with the Act and the Rules made thereunder. This is Constitutional protection guaranteed to a civil servant under section 49 of the Azad Jammu and Kashmir Interim Constitution Act, 1974.
16. Even if, for the sake of arguments, it is assumed that the Government was possessed of the powers to pass the impugned order without taking resort to the Efficiency and Discipline Rules still the same is unlawful having been made in contravention of well-known and recognized principle of natural justice embodied in the maxim 'audi alterm partem'. The order in question has been passed without giving any show-cause notice to the petitioner or giving him an opportunity of being heard for which reason it stands vitiated on account of nonobservance of the above provision of natural justice.
17. It may not be out of place to mention here that even the respondents have now realized that the impugned order lakes the legal sanction behind it having been passed without complying with the requirements of the relevant law on the subject inasmuch as they have now started disciplinary proceedings against the petitioner under the Efficiency and Discipline Rules on the basis of the same grounds on which the impugned order has been passed. As would appear from the application of the petitioner for allowing the amendment of this writ petition, an Inquiry Officer has been appointed to conduct inquiry into the allegations which were made the basis of the impugned order and the petitioner has been furnished with the charge-sheet under the Efficiency and Discipline Rules.
18. For the reasons stated above, the order of the Government-respondent, dated 17-7-1983, directing the recovery of the amount of K Rs,7,680 from the pay of the petitioner by deducting Rs,600 per month his pay, is declared to be unlawful, illegal and of no legal effect which is accordingly set aside.